District Court New South Wales Medium Neutral Citation: R v Truslan Constructions Pty Ltd [2019] NSWDC 321 Hearing dates: 30 April 2019 Date of orders: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $600,000.00 but that will be reduced by 25% to reflect a plea of guilty. (3) Order the offender to pay a fine of $450.000.00 (4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5) I order the offender to pay the prosecutors costs in the sum of $32,500.00. Catchwords: CRIMINAL LAW – prosecution – Work, Health & Safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108 Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Truslan Constructions Pty Ltd (Defendant) Representation: Counsel: R Reitano appeared for the Prosecutor N D Read appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Stephen Booth, Coleman Greig Lawyers (Defendant) File Number(s): 2018/59382 Publication restriction: None Judgment 1. On 25 October 2016 Truslan Constructions Pty Ltd ('the offender'), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 ('the Act'), by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the offender's business or undertaking and in doing so exposed workers to a risk of death or serious injury. 2. This offence carries the maximum penalty of $1,500,000.00. 3. The offence was committed at a construction site located at 11 Porter Street, Ryde NSW 2112 ('the construction site') on 25 October 2016. At that time and place there were workers working in the offender's business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Mr Iremar Da Silva ('Mr Da Silva') who, as a result of being exposed to the risk, was fatally injured when the risk came home. 4. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below. BACKGROUND 1. At all material times the offender (formerly known as KNT Constructions Pty Ltd) (ACN 601 696 379) was a person conducting a business or undertaking within the meaning of s 5 the Act. The registered address of the offender was Suite 803 Level 8, 60-62 York Street, Sydney NSW 2000. 2. The offender changed its name to Truslan Constructions ('Truslan') on 21 November 2017 (the ACN has remained the same). Truslan has its registered address at Suite 25F Level 25, 2-26 Park Street, Sydney NSW 2000. 3. The offender provided construction services primarily focusing on residential construction of townhouses, units and apartments. Mr Sitao (Tom) Zhang ('Mr Zhang') was the Director of the offender. Mr Dennis Macan ('Mr Macan') was the KNT Project Manager. Both Zhang and Macan swore affidavits which were respectively marked exhibit A and exhibit B. 4. The offender was contracted to build a six-storey mixed residential and commercial block with basement parking at the construction site. The construction site was a workplace pursuant to section 8 of the Act. The offender was the principal contractor and therefore controlled the construction site. 5. On or about 21 June 2016 Sapform Pty Ltd (ACN 167 809 592) ('Sapform') was engaged by the offender to provide formwork services. Mr Luis Alberto Arrilucea ('Mr Arrilucea') was the sole director of Sapform. Sapform conducted a business or undertaking providing formwork services in the residential and commercial construction sector. 6. On or about 10 October 2016 Mr Da Silva through his company Clamster Pty Ltd (ACN 072 124 728) commenced work at the construction site as a subcontractor contracted by Sapform to carry out the formwork services at the construction site. Pursuant to section 7 of the Act Mr Da Silva was a worker caused to be engaged by the offender. 7. In this way, the activities that Mr Da Silva carried out were influenced and directed by the offender, in that he was an employee of a subcontractor engaged by the offender. The offender could also influence or direct workers, including Mr Da Silva, in its capacity as the principle contractor at the construction site. 8. Mr Da Silva had 25 years' experience working as a carpenter. Mr Da Silva and Arrilucea had worked together in the past on other worksites. 9. Zhang and Arrilucea managed and supervised the daily running of the construction site, which involved personal visits (up to three times per week for Zhang and at least once a week for Arrilucea). THE INCIDENT 1. On 25 October 2016 Mr Da Silva attended work at the construction site and was instructed by Mr Edwin Arvildo ('Mr Arvildo'), an employee of Sapform, to complete the deck on Level 2. At the construction site, the ground floor was known as Level 1 and Level 2 was more than three metres above it. 2. By 25 October 2016 around 30% of the total formwork on the site had been completed. 3. Protecting the perimeter of the Level 2 deck was a permanent scaffold, however, there were significant gaps (of up to 530mm) left between the edge of the deck and the scaffold. There were also uncovered penetrations in the Level 2 deck that lacked plywood, and gaps in the joist timbers. 4. There were no handrails or catch decks protecting the gaps between the edge of the deck and the scaffold. Some of the other gaps in the Level 2 deck were intentionally left in order to leave space to construct columns at a later date. 5. Immediately prior to the incident Mr Valdez was working with Mr Da Silva in the process of cleaning plywood to give to Mr Da Silva. 6. Mr Da Silva was laying plywood on Level 2 when, at approximately 1:39pm, he fell down more than three metres onto a metal starter bar with a yellow reinforce bar cap that was protruding from the floor below ('the incident'). 7. Mr Valdez told the NSW police in his statement that he did not see how the fall occurred but turned to look in Mr Da Silva's direction when he heard people screaming. Mr Valdez saw that Mr Da Silva had fallen through the gap between the where the plywood had not yet been laid and timber. 8. Unfortunately, Mr Da Silva was fatally injured in the fall. SYSTEMS OF WORK BEFORE THE ACCIDENT 1. At all material times the offender had a Work Health and Safety ('WHS') system in place and had appointed a project team to oversee and implement those WHS strategies. Zhang and Macan were both part of the WHS project team at the construction site. 2. The WHS system consisted of: 1. A WHS Site Specific Plan; 2. Regular site inspections; 3. Site Safety Inductions (which including obtaining a white card from each worker); and 4. Emergency Evacuation Plan. 1. The following work sequence is the methodical accepted industry standard that is used when laying formwork: 1. Lay all bearing timbers; then 2. Lay all joisting timbers; only then 3. Lay formwork boards, and place these boards in such an order to minimise exposed leading edges. 1. Unfortunately, this was not the procedure that was being followed at the construction site: 'It is apparent from the photographs and videos taken on the construction site immediately following the incident of the missing joist timbers, the gap between the edge of the Level 2 deck and the scaffold, that the formwork which was being completed on the Level 2 deck was not following the accepted industry standard safe work sequence and that it had not been followed for some time prior to the accident.' (Agreed Statement of Facts, paragraph 21). 1. On 10 October 2016, Mr Da Silva commenced on the construction site and received induction training from Macan which included the following: 1. Face-to-face training in accordance with the KNT induction booklet, which confirms understanding in plant risk assessment, compliance with documented Safe Work Method Statement ('SWMS') and other specific items listed in the booklet; 2. Completion of an induction checklist; 3. Notice of site-specific hazards to be cautious of; 4. The Sapform SWMS dated 13 July 2016, which was obtained and reviewed by the offender. 1. I note that the Sapform SWMS did not cover the specific task that Mr Da Silva was engaged in. The Sapform SWMS did, however, address the risk of "falling from height" while performing the following: 1. Installation of Wall Shutters; 2. Installation of Walkways at the top of Formwork; 3. Stripping Formwork. 1. The Sapform SWMS did not address the risk of falling from heights when laying formwork having regard to the accepted industry standard that is used when laying formwork. Specifically, the Sapform SWMS did not outline that workers were to: 1. Lay all bearing timbers; then 2. Lay all joisting timbers; only then 3. Lay formwork boards, and place these boards in such an order to minimise exposed leading edges. 1. At all material times there was an abundance of guidance material that was readily available to the offender. This includes all documents listed in the Sapform SWMS on page 11-12. Sadly, none of the resources were seen to be relevant to this SWMS and were not utilised. No items were ticked off as being relevant. 2. Before work commenced at the construction site there was an agreement between the offender and Sapform about the responsibilities of each company – it was decided that the offender would be in charge of erecting the perimeter scaffold and Sapform would install additional fall protection, once the scaffold had been installed. 3. In essence, the perimeter scaffold afforded some protection to the upper decks and the remainder of the protection devices would be the responsibility of Sapform. This would include all necessary fall prevention devices such as the supply and installation of hand rails or catch decks. Schedule 1 of the contract also allowed Sapform to temporarily infill penetrations, including the installations of steel mesh supplied by the offender. 4. As the principle contractor at the construction site, the offender had a duty to ensure Sapform's WHS Systems were in place and adhered to. However the WHS system of Sapform's did not cover the task that was being performed. There were no documented risk assessments undertaken at any stage at the construction site. GUIDANCE MATERIAL 1. There was an abundance of material available generally to the offender and Sapform. It is available to head contractors. The significant amount of material is available online and via the JH Intranet. The specific codes and regulations are detailed below. 'Work Health and Safety Regulation 2011' 1. Clause 78 Management of risk of fair specifically states that a person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to the person or any other person. 2. Clause 79 applies where it is not possible to eliminate the risk of a fall to which clause 78 applies. Sub-clause 3 relevantly provides that a person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: 1. Providing a fall prevention device if it is reasonably practicable to do so; or 2. If it is not reasonably practicable to provide a fall prevention device, providing a work positioning system; or 3. If it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. 1. Subclause 5 defines 'fall prevention device' to include: 1. A secure fence; and 2. Edge protection; and 3. Working platforms; and 4. Covers. 'Formwork, Code of Practice 1998, WorkCover NSW' 1. While this Code of Practice was developed based on previous WHS legislation which was replaced with the Act, it is still current and can be relied on to instruct duty holders in how to meet their WHS obligations in relation to formwork. 2. Section 3.2 of this Code of Practice outlines planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site, including: 1. An assessment of the risks involved in carrying out the work. 2. Identifying the most appropriate methods to control any risk of injury. These include safeguards such as guardrail systems (including toeboards), perimeter safety screens and barriers, and fall arrest systems. 3. Providing suitable and safe access to and from the construction site including each place of work. 4. Ensuring that all persons carrying out the work have received appropriate training and instruction. 1. Section 3.3 of this Code of Practice outlines planning practices a contractor (sub-contractor) should carry out in addition to those in consultation with the principal contractor, including: 1. An assessment of the risk in carrying out the work; 2. Identifying the most appropriate methods of preventing the risk of injury including falls, slips and trips; 3. Providing a documented work method statement describing the 'sequence of work tasks and activities and how the work is to be done safely.' This work statement should take into account an assessment of the risk involved in carrying out the work; 4. Ensuring that the sequence of work tasks is designed to increase safety; 5. Minimising the working heights for persons erecting and dismantling formwork; 6. Ensuring all formwork materials such as joists, bearers, plywood, support frames, jacks and U heads comply with the specification and relevant codes and standards and are used in accordance with manufacturer's specifications; 7. Suitable and safe access must be provided to and from the construction site including each area of work. This should include planning the position of frames to ensure safe access such as persons walking between frames. (emphasis added) 1. Sections 4.1 to 4.3 refer to the prevention of falls, including appropriate methods of edge protection. 'General Guide for Formwork and Falsework, SafeWork Australia, July 2014' 1. At pages 9-10 of this Guide, it states that a safe system of work should be followed in the erection of formwork - including: 1. A methodical work sequence where all component connections are secured and tightened as required before progressing; 2. Implementing all required fall and falling object risk control measures e.g. install edge protection and work platforms are constructed. 1. At page 12 of the Guide, it notes that the following hazards may increase the risk of a fall when erecting formwork: 1. Protruding objects below; 2. Penetrations and void areas not identified or protected; and 3. Incomplete work platforms, scaffolds or loose components where work is being done. 'Guide to Formwork, SafeWork Australia, July 2014' 1. Specifically, at pages 7-8, this Guide refers to open penetrations and notes that these should be protected with edge protection like handrails, or by securely covering them so no one can fall through them. 2. It notes at page 8 that using plywood covers alone is not a satisfactory risk control because: 1. The cover may be indistinguishable from other pieces of plywood; 2. It cannot be refitted without significant modification, once the first service is installed; 3. It may be difficult to determine if the plywood is properly secured; and 4. Secured plywood covers can be unsecured to gain entry and not re-secured. 1. It recommends that plywood covers should be structurally graded, painted in a bright colour and marked with wording, for example; 'Danger penetration below'. 2. At page 9 it refers to edge protection on a formwork deck, and provides examples where edge protection should be installed: 1. When a leading edge is to be left unattended and entry onto the deck has not been barricaded off; and 2. At openings in stairwells or lift shafts. 'Managing the risk of falls at workplaces Code of Practice, April 2016' 1. Section 4 of this Code refers to 'Fall Prevention Devices'. In particular, at 4.1 it states that a safety consideration relating to the use of scaffolds includes: 'edge protection (hand rails, mid-rails and toe boards) is provided at every open edge of a work platform.' 2. At 4.2 the use of perimeter guard rails is discussed, to provide effective fall protection at: 'the edges of mezzanine floors, walkways, stairways, ramps and landings' as well as 'around openings in floor and roof structures'. 3. At 10.3 it specifically refers to how the design and planning stage of construction of buildings or structures for larger projects should involve consultation, co-operation and co-ordination between the builder and other designers to ensure the safe interaction of the different design aspects. In this way, the onus for meeting these requirements rested with KNT and its contractors and subcontractors, as well as their relevant directors. 4. It further states that this design and planning stage should include: 1. Reducing the risk for those working at heights, such as the installation of guard rails to perimeter structural members prior to erection; and 2. Sequencing of the work to be performed at heights. 1. Neither the offender (in its capacity as the principal contractor with overall responsibility for the construction site), nor Sapform complied with the available guidance material as there was no fall protection in place in the area Mr Da Silva was working at the time of the incident. KNT did not ensure Sapform followed a safe work sequence for performing formwork at all times on the construction site. 2. It is apparent that neither the offender, in its capacity as principle contractor, with the overall responsibility for the site, nor Sapform complied with the available guidance materials, as in the area in which Mr Da Silva was working at the time of the incident there was no fall protection in place. As such the offender failed to ensure Sapform followed a safe work sequence for preforming the formwork duties. 3. On 14 October 2016, 11 days before the incident, a Construction, Forestry, Mining and Energy Union ('CFMEU') Officer attended the construction site and issued a notice to the offender identifying a suspected contravention in relation to falls from heights. SYSTEMS OF WORK AFTER THE INCIDENT 1. After the Incident, at the construction site, the offender and Sapform, together, undertook a site-wide risk assessment. Sapform created a new and improved SWMS, which was approved by the offender. 2. Subsequent to the incident, the offender has also made the following general improvements to safety: 1. An external consultant has been hired to review the WHS systems; 2. KNT ensured that custom-made plywood boxes are to be used to cover all metal starter bars; and 3. Employed a safety officer to supervise the project at the construction site. 1. In response to the aforementioned notice, the offender outlined the following steps to control the risk of fall from heights: 1. Spray penetrations to formwork; 2. Use barrier tape to isolate the formwork; 3. Maintain handrails; 4. Protect the crane penetration; 5. Increase the height of the handrail at a particular point in the grid; and 6. Implement edge protection around the grid. Considerations 1. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 for the purpose of sentencing. Objective Seriousness of the Offence 1. The duties of the offender require that it ensure that the health and safety of workers as far as reasonably practicable. As the offender has pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the offender cannot escape it's liability as a consequence of its contractual relations with other parties, as the offender had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors. 3. In WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108 at [11] Basten JA explained the approach to sentencing as follows: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: the potential consequences of the risk, which may be mild or catastrophic; the availability of steps to lessen, minimise or remove the risk; and whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors. (Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 at [34]. ….. The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.' 1. A matter that is of great significance to me is that 11 days prior to the accident in which Mr Da Silva lost his life, that is on 14 October 2016, Mikel Dacko ('Mr Dacko') from the CFMEU attended the building site as part of his regular, but unannounced, inspections of building sites. Mr Macan's affidavit indicates that this was not an uncommon event. He did a lengthy site walk with Mr Macan. He made verbal recommendations to Mr Macan, who deposes in his affidavit that these recommendations were listed for action in the site office on the notice board. 2. Mr Macan further deposes that they were attended to promptly on the day or soon after when certain arrangements had been made to have the appropriate gear available. 3. Mr Macan states as follows in his affidavit: 'Action taken included improving handrails, adding barrier tape for visibility, and ensuring penetrations were spray painted for visibility. Some of the items raised by Mikel (e.g. the reference to Grid A/5, related the junction between our building and the adjacent building and differences in the levels of our and their work, and rails along those. None of the recommendations related to Level 1, where the incident occurred, as that had not yet been erected.' 1. Mr Macan gave evidence before me on the plea hearing. He gave the following evidence at page 14 of the transcript, line 44: 'Q. In terms of the issues that were brought to your attention by the CFMEU, how would you describe those items? A. I would describe those as housekeeping items that you would typically find on most building sites and they would be addressed during the course of the works.' 1. It is an agreed fact that the CFMEU representative gave a notice pursuant to section 117 of the Work Health and Safety Act with regard to suspected contraventions of the Act. 2. Mr Macan gave further evidence as to this notice at transcript page 15, line16; 'Q. And these housekeeping matters that you refer to were significant enough to the gentleman from the CFMEU for him to issue with one of those notices, correct ? A. Yes, I believe so. Q. Would you argue with the proposition that suspected contraventions of the Work, Health and Safety Act are substantial issues? A. No, I wouldn't argue with that, no. Q. So he wasn't telling you about what you describe as housekeeping matters, he was telling you about substantial issues, wasn't he? A. You could say it like that, yes, yes.' 1. Further, at page 16 line 1, he gave the following evidence: 'Q. So when the CFMEU gentleman gave you the notice and said one of the suspected contraventions were related to falls from heights, you knew that was a substantial issue, didn't you? A. Yeah, I acknowledge it's a substantial issue always, yes.' 1. There was further evidence given as to the white board that was on site (Transcript page 16). Mr Macan was asked what the writing on the whiteboards said. At line 36 he was asked the following; 'Q. Would you be able to read what the red handwriting says out loud so there is no dispute about what it says? A. So Union Items is the heading. "Spray panos(?) to formwork, barrier tape to isolate formwork, maintain handrails". ….. Q. If we look at these items seven I think? A. Yes. Q. All of them relate to matters to do with falls protection, do they not? A. Yes. Q. All of them relate to the risk that would be posed to, amongst others at the site, formworkers? A. Yes, I'd agree, amongst others.' 1. Mr Zhang, the director of the company swore an affidavit which was marked exhibit A and gave evidence before me. He gave evidence that he was not on site when the CFMEU representative visited on 14 October 2016, nor did he speak to him after the visit. He was aware that an issue of suspected contraventions was issued, but he had not seen that notice. He was told about it by Mr Macan and another worker (Transcript pages 4-5). 2. He was asked at Transcript page 5, line 35: 'Q. Can you tell me, in relation to what you say in paragraph 45, did you do anything as a result of what Denis and Joe told you? A. They told me there was some safety issue that needed to be rectified. I basically, I said, we'll need to get them fixed ASAP. Q. My question is, did you do anything as a result of what they told you? A. I, yeah, I told them to do what the CFMEU told us to fix, and we'll fix it, and they'd given us a program. Q. Did you oversee any of the things that were done to rectify that the CFMEU identified? A. Not at that time.' 1. The notice was never received by Mr Zhang, and at transcript page 8 line 46 he gave the following evidence: 'Q. My question was, sir, were you quite content for the site to continue operating with these suspected contraventions of Work, Health and Safety legislation existing? A. Well no, the works related to this were attended to as soon as we can, but then works is not affected with – you know, we kept working on those areas not affected, really. Q. I take it the answer to my question was yes, you were content for the site to continue operating with these suspected contraventions in place? A. Because the CFMEU visits, they told us we need to fix it by a certain time, and they haven't told us we can't work in the – in. Q. Did you have a concern that when you were told about these things that the CFMEU had come to the site, a site presumably that you had understood was safe because of the systems that yourself had put in place, did you have a concern that there might be other matters that needed to be investigated on the site as a result of the CFMEU bringing these things to your attention? A. Yes, of course. We, we – I personally walked the site two to three times a week and all our staff walks the site. We look out for hazards, we look out for safety hazards and issues on site, and we rectify it straight away when one sees them. So we are always aware of the safety issues and if we see them, we'll try to fix them as soon as we can.' 1. Mr Zhang's evidence, to my mind was not the evidence of a concerned director of a company who employed and contracted labour, but of someone who had little regard for his work, health and safety obligations, such that he was prepared to hand the task to someone else, rather than take steps personally to ensure the safety of his workers. 2. I find it most concerning that 11 days prior to the tragic events that ended Mr Da Silva's life, the CFMEU had attended the building site and issued notices which specifically identified risks of workers falling from height, and Mr Zhang relied on others to address those issues and made no independent checks to ensure that appropriate measures were taken. This to my mind shows a blatant disregard for the safety of workers, as he did precious little to eliminate or at least minimise the risks to workers, such as Mr Da Silva. 3. Having done so little, workers, including Mr Da Silva were exposed to a risk of falling from heights on the site. Tragically the risk came home with regard to Mr Da Silva. 4. My findings about the offender's level of culpability are based on the following: 1. The risk here was the risk of falling a distance of about 3m from the edge of a partially constructed deck. Unfortunately it came home, and the deceased lost his life; 2. The nature of the risk was foreseeable. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is more objectively serious. The risk from falling from heights on building and construction sites are notorious. It is common sense that people working at height are at risk of falling down unless there is something that intervenes to prevent that occurring. It is a feature of many decisions of this Court in this jurisdiction and in the Industrial Court of NSW; 3. The risk was also obvious, glaringly so. There were no guard rails or edge protection, and the work was being performed at height. It seems impossible to me, that even a perfunctory inspection and risk assessment would not have revealed this risk; 4. The CFMEU having attended the site, issued notices which included the risks to workers of falling whilst working at height; 5. Mr Zhang gave this notice scant regard, and relied almost exclusively on others to address the issues. He also to my mind, wished to deflect his own responsibilities and pass them onto Sapform. These duties are non-delegable, and his approach shows a very cavalier attitude to the risks to which his workers were exposed; 6. The risks were not identified by the offender's employees as they were not required to perform a risk assessment in relation to the formwork services. The risk may have been created by the form workers, but it is incumbent that the person in control of the business, here the offender, makes appropriate risk assessments; 7. The means to control the were cheap and not difficult to implement, as is evidenced in the relevant publications to which the offender had access. The measures available to the offender to eliminate the risks were as well known as the risk itself. Prohibiting workers (as opposed to directing them to) from working where there was no adequate edge protection in place was neither difficult nor expensive to implement; 8. The consequence of the offender's actions exposed workers to the risk of serious injury or death. The death of Mr Da Silva evidences so much; and 9. These factors point to an objectively serious offence. DETERRENCE 1. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610 at 644 para [74]: 'Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' 1. The Court of Criminal Appeal in Bulga Underground Operations cited with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay), [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule: 'It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (Inspector Page) v. Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39 at 40-43), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. …' 'Even where an offender demonstrates good character or a commitment to rehabilitation, the ourt may be obliged to have regard to the need for general deterrence; see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. In relation to specific deterrence, the attitude of the offender to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the offender to reoffend. 2. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors. 3. In this matter the culpability of the offender must be evaluated having regard to the contribution by other duty holders at the construction site to the risk, namely Sapform, the specialist formwork contractor. 4. Mr Da Silva and Mr Valdez were form workers engaged by Sapform to undertake formwork at the site. At the time of the incident they were doing exactly that. The deck that was under construction by the form workers and the task of laying formply is one that necessarily exposes workers to a risk of fall from a leading, or exposed edge, unless a safe work sequence is followed. 5. This sequence is set out at paragraph 21 of the agreed statement of facts. It is submitted by counsel for the offender that the sequence of work provides protection against the risk of a fall. He submitted that Mr Da Silva was an experienced formwork carpenter, and had previously undertaken formwork for Sapform. 6. The offender submits that essentially the risk of falling was one that was created by the formworkers and one that they could have protected themselves from. That may be technically so, but as there had been no appropriate risk assessment done by the offender, the risk was not addressed. To submit that the offender consulted with Sapform about the overall job planning, and relied on Sapform, being an experiences contractor is of little relevance. 7. The offender does not submit that they cannot transfer their duty to Sapform, but that the offender's relative culpability must be assessed with the contractual arrangement in mind. 8. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.' 1. Whilst the issue of general deterrence is very important, I am of the view that this is a matter where the issue of specific deterrence is also important and to my mind is an aggravating factor. 2. Mr Zhang gave evidence as to steps that the offender had taken after the incident.(transcript pages 9-13) At page 11 line 16, the following interchange is recorded: 'Q. If this incident were to happen today, if we took ourselves back to 25 October 2016, what would be different in terms of Sapform's work at the site and Truslan's work at the site and I should be very careful about this, what would be different to what occurred prior to the incident? A. We would have a more stringent process in reviewing Sapform's sequence of work in terms of different stage of formwork erections and we would ensure Sapform allowed more supervision for their workers to carry out the sequence of work in erecting the formwork properly. Q. If Mr Da Silva was proceeding to undertake work on level 2 of the construction site without appropriate edge protection in place on 25 October 2016 would Truslan have done anything under its new systems that exist today? A. We - if we say that. Even back then if we saw that there was an opening gap we definitely would have told them to stoop work and put up the edge protections. Even back - if Sapform worked on our site if we saw there's edge protection missing we would have put up the edge protection straight away. Q. Sir, forget about if we saw, what would we do to try and see? A. Walk outside more, provide more-- Q. Is that all you would do today that would be different to back then? A. We would have probably enforced more, for Sapform to provide more supervision and asked to provide more supervision as well. Q. I'm not asking you, and I think what you're doing now is telling me what would have been a good idea, I'm asking you what would be different if this happened today? Would Sapform provide more supervision? Do you insist on your formwork contractors providing more supervision today? A. If we do the same thing today we would have - well, like I said, we would ensure Sapform followed the sequence of work and order workers of erecting the formwork. Q. And how would you do that? A. More communication to the subcontractors and make sure they follow the SafeWork method statement that's properly been documented. Q. Who would do that today? A. Our site team and myself. Q. How is that different from what happened on 25 October 2016? A. The sequence of work really wasn't documented and followed. Q. The answer is that in terms of what would happen on a site today you've implemented nothing that would make any difference, isn't that correct? A. No. Q. What you do today is exactly what you did prior to this incident on 25 October 2016 in relation to formwork contractors, correct? A. No, we made it more stringent in review of our swings and the sequence of work and sequence of work in formwork. Q. Have you done anything to ensure that appropriate controls such as the installation of appropriate fall prevention devices or temporary guard rails are in place? A. Yes, that will be definitely in place. Q. Right, was that definitely in place before 25 October 2016? A. The perimeter edge protection was in place and then the - the guard rail between that, no, it wasn't in place because it happened within an hour of two to three hours while they were working on the deck. Q. And there's nothing that's in place today that would prevent exactly the same thing happening, is there? A. No because they're working on a large deck but we definitely would put edge protection in place, we've made them put edge protection in place before they actually get on the deck or while they're working throughout the deck.' 1. I am not satisfied that the offender's answers are sufficient to allow me to conclude that the will not be any further breaches of the legislation. For this reason specific deterrence is a matter that I have given significant weight in coming to my determination. AGGRAVATING FACTORS 1. At the sentence hearing, Mr Da Silva's widow read a Victim Impact Statement to the Court. It was distressing and heartbreaking to hear. The loss that Ms Moussa detailed on behalf of herself and her son is enormous. The impact of this incident on the lives of many people is significant. This is an aggravating factor. 2. The visit from the CFMEU to the site 11 days before the incident, during which risks of falling from heights were identified and an appropriate notice issued, should have triggered an urgent inspection and risk assessment yet appropriate steps were not taken to eliminate or minimise the risk is an aggravating factor. 3. The attitude of the director of the offender, Mr Zhang to the notices issued prior to the incident is an aggravating factor. 4. The attitude of Mr Zhang to his obligations to work health and safety after the incident is an aggravating factor. MITIGATING FACTORS 1. The offender entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea. S 21A(3)(e) 2. The offender has any antecedents. S 21A(3)(e) 3. The offender so-operated with the SafeWork investigation. S 21A(3)(m) 4. The offender through its director has shown remorse and I accept that as genuine. s21A(3)(h) COSTS 1. By agreement, the offender is to pay the prosecutor's costs in the sum of $32,500.00 inclusive of GST. PENALTY 1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $600,000.00 but that will be reduced by 25% to reflect a plea of guilty. 3. Order the offender to pay a fine of $450.000.00 4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 5. I order the offender to pay the prosecutors costs in the sum of $32,500.00. *********************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2019